N. Ananda, J : The respondents (hereinafter referred to as accused No.1 and 2) were tried for an offence punishable under Section 304-A IPC, in C.C.No.18336/2000 and they were acquitted. Therefore, the State has filed this appeal.

2. I have heard the State Public Prosecutor for the State and learned Counsel for respondents.

3. In brief, the case of prosecution is as follows:

During the year 1999, accused No.2-Dr.K.M.Rajagopal was the proprietor of Lakshmi Nursing Home, situated in Sheshadripuram at Bangalore. Accused No.1-Dr.S.Vijayalaxmi was the Consulting Gynecologist and Visiting Doctor of Lakshmi Nursing Home.

4. In the year 1999, PW.1-Mala Prasad (wife of PW.2- R.A.Prasad) had conceived and she visited Lakshmi Nursing Home during her pregnancy. She was carrying nine months pregnancy. On 03.11.1999, PW.1 was admitted in Lakshmi Nursing Home. She was being treated by accused No.2. Accused No.1 and 2 had decided that PW. 1 shall undergo natural delivery however, on 04.11.1999, it was noticed that the fetus (unborn child) in the womb of PW. 1 was dead due to Retro-placental clot of about 59 ml. Accused No.1 and 2 informed PW's. 1 and 2 about the death of child. On 05.11.2009, at about 7.30 a.m., there was natural delivery of dead fetus. PW.1 continued to take treatment in Lakshmi Nursing Home for post delivery care for a period of 8 days. Thereafter, she was discharged from the hospital.

5. On 24.11.1999, PW.2-R.A.Prasad (husband of PW.1) lodged the first information alleging that death of unborn baby (fetus) in the womb of PW. 1 was due to medical negligence. PW.1 has stated, if accused No.1 and 2 had performed caesarian operation on 04.11.2009, they could have saved the child. On the basis of first information lodged by PW.2, the jurisdictional police officer registered First Information Report and after investigation, filed final report against accused No.1 and 2 for an offence punishable under Section 304-A r/w 34 IPC.

6. In order to bring home the guilt of the accused, the prosecution has relied on the oral evidence of PW's. 1 to 8 and documents marked as per Ex.P1 to P12. On behalf of the defence DW.1-Srimani Rajagopalan was examined.

The prosecution has made allegations of medical negligence against accused No.1 and 2 who are the Doctors by profession.

7. In a decision reported in 2004(3) Crimes 149 (SC) (in the case of Dr. Suresh Gupta Vs. Gout. of N.C.T. of Delhi and Another), the Supreme Court has held:

"Between civil and criminal liability of a doctor causing death of his patient the Court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offence, the Standard should be proof of recklessness and deliberate wrong doing i.e., a higher degree of morally blameworthy conduct.

To convict, therefore, a doctor, the prosecution has to come out with a case of high degree of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. The Courts have, therefore, always insisted in the case of alleged criminal offence against doctor causing death of his patient during treatment that the act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable."

8. The law is fairly well settled, if allegations of professional negligence are made against the Doctors, they could be made liable for criminal prosecution, only if it is proved that there was negligence or rashness of higher degree of mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable. Mere lack of proper care and attention or inadvertence might create civil liability but not a criminal one.

9. From the evidence of PW's. 1 and 2, it is established tha